(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a wrongful death action involving the death of Trevor Smith, who was a forty-one-year-old father and husband from Sacramento. He died of cardiac arrest following a lengthy period of multi-organ failure. Plaintiffs assert Defendants failed to properly diagnose and treat his condition.

Certain of defendants’ expert witnesses in the pending case may testify to opinions on causation and the standard of care concerning the treatment. Some of the expert testimony may be couched in terms of “medical possibilities” rather than “medical probabilities.” California Evidence Code section 350 limits admissibility of evidence to “relevant evidence.” Relevant evidence is evidence “having some tendency in reason to prove or to disprove any disputed fact of consequence in the action”, that is, evidence that is probative of some disputed issue in the case. See Evidence Code section 210. Thus, evidence is irrelevant if it has a tendency to prove or disprove a disputed fact of consequence only by reason of drawing speculative or conjectural inferences from such evidence. On the basis of this definition, defendants’ expert testimony may be irrelevant if it does not establish causation or the standard of care to a reasonable medical probability.

Section 352 of the Evidence Code permits the Court to exclude probative evidence if it is otherwise time-consuming, prejudicial, confusing or misleading. We are interested in medical probabilities, not possibilities, conjecture and/or speculation.

“If the probative value of relevant evidence is slight or weak and the danger of prejudice from the evidence is great or strong, the weighing process points toward a ruling to exclude such evidence.” See B. Jefferson, California Evidence Bench Book, 2nd Ed., § 22.1, pp.588-589. (See Part 2 of 3.)